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State Supreme Court raises questions about law allowing searches without consent

A Wisconsin Supreme Court ruling left some judges with questions about a law allowing law-enforcement officials to search people on probation, parole or extended supervision without obtaining consent or a warrant.

The justices ruled Friday in a case questioning a search a Racine police officer had conducted under the authority of Wisconsin Act 79. The 2013 law allows law-enforcement official to search someone on probation, parole or extended supervision without first obtaining consent or a warrant if the officer suspects the person is committing a crime, or  is about to commit one or has committed one.

In 2015, the officer Michael Seeger searched Roy Anderson after seeing him take notice of Anderson’s squad care and then ride a bike on a sidewalk and put his hands in his pockets. Court documents say Seeger found on Anderson two bags of crack cocaine, more than $200 in cash and two cell phones. The state charged Anderson with possession of cocaine.

Anderson argued Seeger hadn’t known he was on supervision when he carried out the search, and even if Seeger had, that Seeger had no reasonable suspicion that Anderson was involved in a crime. Seeger said he had been familiar with Anderson’s case since he’d arrested him in 2012 for selling narcotics. He said he had received two anonymous tips about Anderson selling narcotics in the weeks leading up to the search. From what he had learned in his training, he believed Anderson, when he put his hands in his pockets, was trying to hide or get rid of drugs. The circuit court ruled Seeger’s search was justified under Act 79. Anderson appealed, and the court of appeals upheld the circuit court’s decision.

The state Supreme Court heard oral arguments in the case in September, and the justices filed an opinion affirming the appellate court’s decision Friday.

“In sum, we conclude that the circuit court’s finding of fact that the officer in this case had knowledge of Anderson’s supervision status prior to conducting the
warrantless search at issue is not clearly erroneous,” the opinion states.

Judge Brian Hagedorn wrote a separate concurring opinion because he said “both parties appeared to presume in their briefing that an officer’s knowledge of a person’s Act 79 status is a threshold question to the validity of any Act 79 search.”

Hagedorn said the question is for another day, but he said this kind of policy is fairly new, leaving judges with “little on-point legal authority.”

“Act 79 embraces a new policy that raises new questions — among them, whether and when the Fourth Amendment might demand more from law enforcement than Act 79 already requires,” Hagedorn wrote. “While today’s decision leaves these issues for another day, such questions should be analyzed by close reference to the text of Act 79 itself and faithful application of Fourth Amendment principles to those with an Act 79 status.”

About Michaela Paukner, [email protected]

Michaela Paukner is the legal reporter for the Wisconsin Law Journal. She can be reached at (414) 225-1825 or by email at [email protected]

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